What Have You Done for Me Lately?

I apologize to old friends and the idly curious for not posting in quite awhile.

Much has happened since I last wrote, and I'm not sure if I should recap some of it in my future posts, or begin anew after this post. We shall see where my inclination takes me. At the moment, it seems to be taking me on an auto-biographical ramble. Perhaps I should begin with why I stopped blogging; I stopped in '09 for various reasons, the crux of which was the job; client confidentiality, ongoing litigation, severe limitations on my time, and so forth. That’s changed to a certain extent.

I left the Public Defender's office in Miami in August of 2011. I’d like to write a bit about my time there and the impression it left on me.

I'm glad of the time I spent in the PDs office. I was there for 4 years and had remarkable experiences; the clients were horrible and wonderful. In fact, just about every aspect of indigent criminal defense practice seemed populated with the entire intellectual and moral range of humanity. When I left I had two pieces of correspondence on my wall. The first, from a client who ended up sentenced to life in prison, was a card he had bought with his commissary money, thanking me for all the work I had done on his case and urging *me* not to be upset at the outcome. The second, sent anonymously (though I figured it out) from a client who had gotten a fantastic deal (involving no jail time), was a screed on how I had wronged him and ended with “Nice Mousedash (sic), Dickhead!”. That kind of says it all.

I left with a tremendous amount of practical litigation experience; literally thousands of depositions, thousands of clients, hundreds of motions, and about 50 actual trials of one form or another. Those trial cases ran the spectrum - misdemeanors to murder. And, as luck or fate or the grace of my trial partners would have it, the vast majority of those trials resulted in very good outcomes. (In many ways my trial experiences were a product of Miami’s particular legal culture during the time I was there – had I gone elsewhere, been assigned different court rooms, or had been opposing different state attorneys, I very much doubt I’d have tried as many cases, or enjoyed the same results.)

I think the most valuable part of the experience came from working with my co-workers and training attorneys; I learned so much from them (not just on matters legal) that it's difficult to quantify; even though I'm no longer there, I am still learning as I muse on the experiences I’ve had. I formed some very deep friendships, and, as a whole, my colleagues continue to impress me with their skill and dedication.

Most importantly, at the close of my time there, I left with the feeling that it had been worthwhile, that I had really helped people – not everyone, surely, but there were truly affirming moments. Going to Miami was one of the most significant and rewarding decisions I’ve made.

These good experiences came with a cost however. I’ll try to explain, as this cost is the main reason why I left the office; it also explains why I stopped blogging, and is, on its own, a very real societal concern.

Most people think (if the issue crosses their minds) that the difficultly with public defense lies in the long hours, the poor pay, the usual problems associated with desk work and not enough exercise, difficult or dangerous clients, and personal moral compromises arising from defending “those people.” *Some* of these proved to be problems for me, but there is one factor (which I’ll touch on in a bit) that dwarfs them all.

It’s true; the hours are long (50-60 hrs a week.) The pay is poor (low to mid 40s). I managed to stay healthy enough despite the desk job, although it took conscious effort. The clients are occasionally difficult and/or dangerous, but this is a tiny percentage of the total number of clients. While it’s a common assumption is that representing the actual clients is the worst part of the job, it’s really not. It’s been explained elsewhere, but, in a nutshell I’m sure I’ve represented some very bad people who did monstrous things; I’m also sure I represented some completely innocent people who were unjustly accused. Either way, the only person (possessing relative power) in the legal system that can help the client is the defense attorney. Guilty or Innocent, no one else in the system is there, by definition, to help them – that’s solely the job of the defense attorney. Anyone who is accused of a crime certainly deserves someone in their corner, giving them advice and rigorously testing the accusations to see if they’re sound or not. So, whatever moral qualms you have about individual clients quickly becomes water under the bridge. Even if you don’t like them personally, you can provide a crucial constitutional service with skill and respectful professionalism.

Despite the hours and the pay, it could have been a sustainable job – for it’s a job rich with satisfaction. I wasn’t able to keep at it, however, almost solely because of the sheer number of clients and the stress comes from representing so many of them, so quickly. Let me try to explain that.

When an individual client is assigned to you, there are a number of things you must do to competently represent them. You have to meet with the client, get their story, find out what they think about the case against them, do investigation, get discovery, go back to the client, go over the investigation and discovery with them to see if it makes sense or if there’s something missing, do legal research, set and take depositions, interview and prepare your own witnesses, review all this with the client, write and file applicable motions, negotiate with the state attorneys assigned to the case, discuss with (often educate) your client on the different ways he can resolve his case by in part highlighting the pros and cons of each. To fairly assess the relative worth of any plea bargain, your client must understand what a trial *would* be like in the case. Then, should your client decide to go to trial, there’s the actual trial prep, followed by the trial itself. In short, it’s a lot of work depending on how you approach it. (I used to have my clients call me after every deposition so I could tell them (briefly) what the witness said, and thus make sure we caught any discrepancies in the testimony.) Regardless of the severity of the charges, the same basic form of client representation remains; however, if your client is facing a situation where the plea offer is 10 years, verses life imprisonment if he loses at trial, sometimes you turn over stones twice, instead of once. Then you turn them over again. Just to be sure.

So the question becomes, once we know what’s entailed in fairly and adequately representing one human being accused of a crime, how many clients should a defense attorney have?

There must be an upper “number” of cases, even acknowledging for the differing degrees of complexity and severity in cases. In my experience, given the resources of the office I worked in, if I had a 40 hour work week and only 5 randomly selected criminal cases open at any given time, I wouldn’t have had enough to do. If I had 20-30 cases, I’d probably have been usefully busy, and could still do a good job.

However, what I actually had was somewhere between 60-90 2nd degree felony clients at any given time. (As a “C” attorney I used to have anywhere from 70-145 3rd degree felony clients). Those are insane numbers, and I can’t stress that enough.

Why are they insane numbers?

One basic reason; a significant number of clients are incarcerated. While the client sits in jail (and believe me, I had “Innocent” clients kept in jail pending the resolution of their cases) they can’t work – apartments and jobs are lost, their relationships crumble, their cars are repossessed, opportunities are missed, and with every day there’s a stronger chance that their general reputation and standing in their community becomes more and more damaged, regardless of the outcome of their case. Beyond this, the jails are a dirty and dangerous place to find yourself in. Not only is there the threat of physical violence from your fellow inmates, the medical and psychological care is, in my opinion, substandard. (For example, the jails have limited kinds of medicine available to treat mental health problems – if you need specific care and medication, you might only be able to get something approximate, and thus, not as effective.) This puts a lot of pressure on the attorney to get those cases developed and ready for resolution/trial as quickly as possible. I’d routinely have about 30 people in jail at any one given time.

There’s no easy fix.

In a nutshell (there’s a much more detailed and nuanced analysis that can be done, involving speedy trial rules and so forth, but the following should suffice for conversational purposes), because courts can only try one case at a time, there’s always a backlog of cases awaiting trial. And, should the state attorneys and the PDs (who handles the bulk of criminal cases in most courtrooms) actually be in trial all the time (trial after trial after trial for a month), new cases would not be developed (depositions taken, etc) and that alone would create a backlog. This creates incentives to plea cases out, which might benefit defendants who were inclined to plea all along, but it hurts clients who need to try their cases. One could say that this kind of incentive most benefits factually guilty individuals with poor trial cases, whereas a criminal justice system should (I think everyone would agree) most benefit individuals who are on the “innocent” side of the spectrum. Well, the big picture is for another blog post, another day. Suffice to say though, that the large numbers of defendants bogs down the system in a dangerous way.

There was a lot of litigation about this in FL and elsewhere. The upshot of it all, when I left, was that the PDs in FL still could not limit their caseloads, and were being forced by the courts to accept clients. Numbers fluctuated somewhat as different alternatives were tried to reduce caseloads and release clients prior to the resolution of their cases. Even when the numbers were at their lowest, they were still far too high for effective representation.

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So what did this mean, practically, in terms of how it played out day by day on the job?

Well, sometime around the beginning of my blogging silence, I was promoted from a "C" attorney to a "B" attorney - meaning that as a “B,” I largely handled second degree felonies. The majority of my new cases were drug trafficking, certain kinds of sex crimes, and violent acts that didn't actually leave someone dead. I also handled certain “sticky” “C” cases involving peculiar circumstances or complex evidentiary issues. I pretty much kept 7am-7pm M-F hours, usually eating at my desk, with occasional weekend work. I wasn’t robotically effective during those hours (no human is) but I certainly didn’t spend afternoons goofing off. On days when I knew I couldn’t work any more, I’d leave at 5pm. That didn’t happen all that often.

Of course, these hours changed when I was actually in trial. The basic rule was, if I wasn't asleep, I was working on something case-related. Felony trials usually last from 2 to 5 days. Trials become chunks of time I’d exclusively focus on one client (excepting a medical emergency or something). They also, by definition, become chunks of time I wasn’t working on other cases, some of would come up the next week, and some the week after that, and so on. In my experience something always happened while I was in trial; I’d get a new client (who is frantically calling you from jail), people call on cases, new discovery would come in, the state would file motions on existing cases, so on, so forth. The only option is to forge on as quickly as you can.

In the short run, as crazy as it sounds, it’s actually kind of sustainable. Being intensely focused is nice. Putting out fires constantly lets you run on adrenaline and switch hats quite a bit. The high turn-over let you see the actual results of your hard work. The more absurdly your clients were treated (or threatened to be treated), the more energy you got. The craziness was exciting, and gave rise to a certain elan, a kind of cynical but vigorous esprit de corps. But the longer I spent there, the more it frustrated me.

Different people deal with the high turnover and caseload in different ways. Some of it is pretty disturbing – you can actually see certain attorneys putting on the weight, getting more and more upset, getting less and less sleep, drinking more heavily. Other attorneys just “check out.” Many leave. Out of the 22 attorneys who were hired at the same time as I was, only 7 remained when I left. (And this is in an awful job market). Some actually seem to find a balance and keep at it.

Of course, it must be said that not all burdens are equal. There are courtrooms where fewer clients are incarcerated, waiting for trial. There are courtrooms where the state attorney is reasonable. There are courtrooms where the judge takes an active role. And then there are courtrooms where these things are not often or routinely the case. In my various postings, I have been lucky enough to have always had good judges I could work with. Sometimes I had good state attorneys (including a few truly excellent, compassionate state attorneys.) I’m not writing any of this to point fingers. I do want to suggest that, from a defense perspective, there are “harder” and “easier” courtrooms, depending on the individuals who create the courtroom culture. And, of course, defense attorneys, depending on their skills and personalities, do better in some courtrooms than in others. I believe I had a typical experience – while I had my “favorite” configuration of personalities to work with, I can honestly say that none of my postings were truly bad. I was always placed in courtrooms where I had a fighting chance. Even the courtroom where I ended up stupidly antagonizing the judge (my fault entirely) turned out with time to be an excellent one to practice in.

So what happened to me?

I’m still thinking this over. I think the constant client turn over just finally got to me. When I left, I still had gas in the tank, but I wasn’t as quite sharp as I used to be. I had ”plateaued” to a certain extent; and I didn’t see the caseload changing enough that I’d have the mental and emotional space to creatively engage with the law. I had moments where I pushed back at this, but the general trend was ongoing.

During my time at the PDs I ended up making a lot of trade-offs. Not necessarily bad ones, per se, but I ended up isolating myself socially in order to accomplish certain things, not all of which I can really blog about. The client/witness/courtroom/trial interactions taxed me socially and mentally, and what was left over didn’t carry me as far; at the end of the day, the last thing you want to do is have an argument or debate with someone.

I can say that I successfully studied for and took the NY bar. (I passed and have been sworn into NY.) I moved to a new apartment and renovated it. And, most importantly, I got married (HA! - More on all that in a bit.) On the negative side of the ledger, I did almost nothing at all with poetry (teaching, reading, writing, publishing) for a couple years. I shrunk my circle of close friends (and family) to a mere handful, and sometimes weeks would pass without my calling them – this spelled the end of one romantic relationship. I teetered on the edge of physical sloth (not helped by a bum knee, which, after a year and a half, has finally stopped clicking.) I certainly crossed the line of mental sloth/exhaustion. I wasn’t going out as much or exploring as much.

I don’t think the average person looking at me might have really noticed anything amis. Who knows? I just felt like I was in a tunnel that I could get through, at the cost of being squeezed and not being able to look around. That’s not exactly the right way to express it though. After a while, you realize that the tunnel goes on pretty much indefinitely.

That kind of constant pressure, high turn-over, trial-trial-trial environment does odd things to perspective and memory. Usually, we have enough “space” in our mental and emotional lives to consider, turn things over, muse. I went through a stage where the job ate up most of those resources. Then, when I met my future wife, I went through a stage where I wasn’t reflecting on the job all that much, even though it demanded much of my daily thought. It’s not really an issue of being “too busy to think,” but it is an issue of being “too busy to emotionally process” things. I’ll try to illustrate it with something I found disturbing. Toward the end of my time in the office, I was physically attacked by a client. It was the only time it had happened to me (well, where I had been touched); it wasn’t the worst thing in the world, and I wasn’t injured. So I did my usual thing of putting it aside and focusing on the next trial. Someone bluntly asked me about it, three weeks later, and I literally had no idea what they were talking about. Of course, I remembered soon enough, but it was disturbing. I wasn’t psychologically suppressing the event, but I was so damn busy it just got folded into “stuff that happened last month” in my brain and didn’t really incorporate it into my emotional and mental architecture. Maybe it was because the incident wasn’t that big of a deal – but at the same time, even if I didn’t really feel that it was emotionally that important, it was a significant event, or should have been one, had I not glossed it over.

I took it as a bad sign, one of many.

So I got out.

Some part of me regrets leaving – I miss the hectic challenge of it all, and, despite the pressure (now mentally minimized that I’m clear of it) I miss the kind of comfort I found in the predictability of the routine. It’s nice to have the answers to all the little things that must be done.

On the other hand, I’m glad to be away from it all. I certainly wouldn’t have had the time or inclination to write this had I still been there.

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So, we’ll close, I think, with more pleasant and important things.

In August of 2011, I had the immense good fortune to be married to a lovely woman. We compliment each other frighteningly well (as is often commented upon by friends and acquaintances) and I am sweetly, sickly, sometimes revoltingly happy about it all. She is, in fact, the woman who I stopped in DC to see in my last blog entry. How odd is that? (While I have further thoughts on this, I am running out of steam, and should end this post soon.)

As mentioned above, since the last blog post I moved apartments several times, took the NY bar, and have relocated to NYC. We visit Miami often; my wife’s extended family lives there, and we both have friends and ongoing business concerns there.

I sold two motorcycles and bought another which became my daily commuter. I’d have tried to commute on bike, as I had when I was living closer, but my eventual commute was 22 miles round trip. I left the motorcycle in Miami, and get around NYC by bicycle.

NYC, as many of you know, is not my first choice for city living. But I’ve lived here before, and I appreciate what it *is* good for – overall it’s a wonderful change from Miami.

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